ANNUAL REPORT TO PARLIAMENT ON THE ACCESS TO INFORMATION ACT PRIVY COUNCIL OFFICE APRIL 1, 2010 TO MARCH 31, 2011

Transcription

1 Government of Canada Gouvernement du Canada Bureau du Conseil privé ANNUAL REPORT TO PARLIAMENT ON THE ACCESS TO INFORMATION ACT PRIVY COUNCIL OFFICE APRIL 1, 2010 TO MARCH 31, 2011

2 Annual Report to Parliament on the Access to Information Act Table of Contents Introduction... 2 Access to Information and Privacy Division... 3 Access to Information Act Delegation Order Statistical Report on the Access to Information Act... 6 Highlights of the Statistical Report....7 Interpretation of the Statistical Report... 7 a) Requests under the Access to Information Act... 7 b) Trends of the Requests Received... 8 c) Types of Information Requested... 8 d) Disposition of Requests Completed... 9 e) Exemptions Invoked f) Exclusions Cited g) Completion Time h) Extensions of Time Limits i) Translations j) Method of Access k) Fees l) Costs Consultations a) External Consultations b) Consultations Received from Other Government Institutions c) Consultations with PCO Cabinet Confidences Counsel Education and Training Activities Information-Related Policies, Guidelines, and Procedures a) Technological Change b) Co-location c) Cabinet Confidence Schedule Optimization d) Turnaround Times Reduced Other Activities a) User Finding Aids b) Processing of Informal Access Requests c) Proactive Disclosure Complaints and Investigations a) Complaints Received b) Types of Complaints c) Investigations Court Cases... 18

3 Introduction The (PCO) reports directly to the Prime Minister and is headed by the Clerk of the Privy Council and the Secretary to the Cabinet. The PCO is both the Cabinet secretariat and the Prime Minister s source of public service advice across the entire spectrum of policy questions and operational issues facing the Government. The PCO also provides support to the Leader of the Government in the House of Commons, the Minister of State (Democratic Reform), the Minister of State and Chief Government Whip, the Leader of the Government in the Senate, and the Minister of Intergovernmental Affairs and President of the Queen s Privy Council for Canada. The overall responsibilities of the include: providing professional, non-partisan advice to the Prime Minister and Cabinet; managing the Cabinet's decision-making system, including coordinating Departmental policy proposals and conducting policy analysis; arranging and supporting meetings of Cabinet and Cabinet committees; advancing the development of the Government's agenda across federal departments and agencies and with external stakeholders; providing advice on the Government's structure and organization; managing the appointment process for senior positions in federal departments, Crown corporations and agencies; preparing Orders-in-Council and other statutory instruments to give effect to Government decisions; fostering a high-performing and accountable public service; and submitting an Annual Report to the Prime Minister on the state of the Public Service. This is the 28 th Annual Report to Parliament on the administration of the Access to Information Act by the PCO, submitted as required by section 72(1) of the Act. This report covers the reporting period of April 1, 2010 to March 31, Additional copies of this report may be obtained from: Access to Information and Privacy Division 55 Metcalfe Street, Room 1340 Ottawa, Ontario K1A 0A3 2

4 Access to Information and Privacy Division The Access to Information Act provides a right of access to information in records under the control of government institutions. The Act is not a substitute for other access mechanisms, but is intended to complement other informal procedures that allow public access to government information. The Act stipulates that government information should be available to the public, necessary exceptions to the right of access should be limited and specific, and that decisions made by government institutions about the disclosure of information should be reviewed by a body independent of government. The Access to Information and Privacy (ATIP) Division is the focal point for access to information and privacy within the. The Division is responsible for managing requests for Departmental or personal information, ensuring corporate understanding and compliance with the Access to Information Act and the Privacy Act, and fostering corporate awareness of access and privacy rights and responsibilities. On matters of access and privacy, the ATIP Division also acts as a primary liaison with the Office of the Information Commissioner, the Office of the Privacy Commissioner, Treasury Board of Canada Secretariat, and partner Departments. The ATIP Division at the PCO has 26 approved full-time equivalents that are organized into three functional areas of responsibility. 1) ATIP Policy and Processes Provides expertise in Access to Information and Privacy policy Optimizes operations performance Researches trends and best practices in Access to Information and Privacy 2) Operations Processes Access to Information and Privacy requests Oversees the collection and release of personal and/or business information Maintains dialogue with secretariats and other federal or provincial institutions 3) Client Services and ATIP Training Produces training and promotional products Develops and delivers ATIP training programs Develops ATIP awareness messaging Coordinates responses to Parliamentary questions and petitions Provides database administration The ATIP Division also provides a reading room where the public may examine requested Departmental records, manuals, and publications related to access to information. This is in compliance with section 12(1) of the Act, which outlines that A person who is given access to a record or a part thereof under this Act shall, subject to the regulations, be given an opportunity to examine the record or part thereof or be given a copy thereof. 3

5 Access to Information Act Delegation Order 4

6 5

7 Statistical Report on the Access to Information Act * * unable to process = no records existed 6

8 Highlights of the Statistical Report In , despite a 51% increase in access requests and an almost 40% increase in the volume of consultations received compared to the previous year, the improved its performance in a number of areas. Productivity was up, with almost 25% more requests completed than in the previous year (673 vs. 545), achieved with only a moderate rise (10%) in full-time-equivalents. This efficiency meant fewer active on-time requests were carried forward into the new fiscal year (95 vs.122 in ). The PCO also significantly improved the timeliness of its response to clients. The percentage of total requests extended for more than 30 days dropped year-over-year, from 49% to 32%. The percentage of total requests requiring 121 days or more to complete also fell, from 37% in to 18% this year. The result of this improved performance was a reduction in complaints from clients. Year-overyear, complaints against the Department dropped 60% (164 to 66). Complaints by the media, which submit half or more of all access requests to the PCO, fell 74% over the same period, from 119 to 31. Interpretation of the Statistical Report a) Requests under the Access to Information Act Between April 1, 2010 and March 31, 2011, the PCO received 647 requests for information under the Access to Information Act. This is a 51% increase from the number of requests received in , and the third-highest volume of requests on record, as shown below Volume of Requests by Year The volume increase was partly due to the number of requests from the media, which rose over 100% from the reporting period. A total of 121 requests were outstanding from the previous fiscal year, and 95 were carried forward into

9 b) Trends of the Requests Received Over the past two years, the greatest number of requests came from, in order: the media, the public, businesses, academia, and organizations. The number of requests from all types of requesters increased in the reporting period, with the exception of academia. As shown in the chart below, the breakdown of the requests received during is as follows: 395 or 60% from the media 127 or 20% from the public 68 or 11% from businesses, including 38 from lawyers 33 or 5% from academia 24 or 4% from organizations, including 19 from Parliament (members of the House of Commons or Senate) Requests by Source 20% 5% 11% 4% Media Public Academia Businesses Organizations 60% While access requests from Parliament increased slightly from 15 in to 19 this year, this figure remains less than half of the total number of requests received from Parliament in (40). This coincides with a steady rise in Parliamentary written questions tasked to the Department over the last three reporting periods, from 33 in to 164 in c) Types of Information Requested Just as the source of requests varied, so did the subject of requests received. Subjects included: Afghanistan and Afghan detainee documents Records on Canada s Economic Action Plan Briefing notes to the Prime Minister for various time periods Contracts and call-ups Cabinet minutes 8

10 d) Disposition of Requests Completed In , the PCO completed 673 requests. As shown in the chart below, the breakdown of the disposition of records is as follows: 342 or 52% were disclosed in part 49 or 7% were released entirely 27 or 4% were entirely withheld pursuant to the Act 12 were withheld under exemptions, and 15 were excluded from release Disposition of Requests Completed 52% 7% 7% 30% 4% All disclosed Disclosed in part Nothing disclosed No records existed Abandoned As these figures indicate, 391 or 59% of the requests were fully or partially disclosed. While this percentage represents a decrease in the release of information compared to the reporting period (72%), it is qualified by the increase in the percentage of requests where no records existed ( unable to process ), which doubled year-over-year (from 96 to 203). Note that the Treasury Board Secretariat uses the terminology unable to process at Part II (6) of the statistical report. However, these requests were processed. No records were found to exist in response to the requests. The percentage of requests where nothing was disclosed remained relatively the same at 4%. The breakdown of the disposition for the remaining requests is as follows: 203 or 30% no records existed ( unable to process ) 50 or 7% were abandoned by the applicant 2 were transferred to another Department e) Exemptions Invoked Although the Act promotes disclosure, there are instances where information qualifies for necessary protection under the Act. 9

11 Totals for the six most commonly used exemptions during were, in order: 307 under subsection 19(1) personal information 272 under paragraph 21(1)(b) consultations or deliberations related to operations of government 192 under paragraph 21(1)(a) advice or recommendations developed by or for a government institution or minister 171 under subsection 15(1) international affairs and defence 134 under Section 14 federal-provincial affairs 114 under Section 23 solicitor-client privilege In compliance with the reporting requirements for the statistical report to Parliament on the Access to Information Act, additional information is provided on exemptions. The following exemptions were not invoked during the reporting period: Paragraph 13(1)(e) information obtained in confidence from an aboriginal government Subsection 16.1(1)(a) records related to investigations for the Auditor General of Canada Subsection 16.1(1)(b) records related to investigations for the Commissioner of Official Languages for Canada Subsection 16.1(1)(c) records related to investigations for the Information Commissioner Subsection 16.1(1)(d) records related to investigations for the Privacy Commissioner Subsection 16.2(1) records related to investigations for the Commissioner of Lobbying Subsection 16.3 records related to investigations under the Canada Elections Act Subsection 16.4(1)(a) records related to investigations under the Public Servants Disclosure Protection Act for the Public Sector Integrity Commissioner Subsection 16.4(1)(b) records from a conciliator related to investigations under the Public Servants Disclosure Protection Act for the Public Sector Integrity Commissioner Subsection 16.5 records related to a disclosure under the Public Servants Disclosure Protection Act Subsection 18.1(1)(a) records related to the economic interests of the Canada Post Corporation Subsection 18.1(1)(b) records related to the economic interests of Export Development Canada Subsection 18.1(1)(c) records related to the economic interests of the Public Sector Pension Investment Board Subsection 18.1(1)(d) records related to the economic interests of VIA Rail Canada Inc. Subsection 20(1)(b.1) third party information related to emergency management plans Subsection 20.1 third party investment information obtained by the Public Sector Pension Investment Board Subsection 20.2 third party investment information obtained by the Canada Pension Plan Investment Board Subsection 20.4 performance contracts with the National Arts Centre Corporation Subsection 22.1(1) draft internal audits less than 15 years old f) Exclusions Cited The Act does not apply to certain information described by Section 68 of the Act or to confidences of the Queen s Privy Council pursuant to Section 69. These exclusions are: 10

12 Paragraph 68(a) published material Paragraph 68(b) museum or library material Paragraph 68(c) material donated to Canadian museums or archives Paragraph 69(1)(a) memoranda to Cabinet Paragraph 69(1)(b) discussion papers Paragraph 69(1)(c) agenda and records of Cabinet deliberations Paragraph 69(1)(d) records of communication between Ministers Paragraph 69(1)(e) records to brief Ministers Paragraph 69(1)(f) draft legislation Paragraph 69(1)(g) records containing information about Cabinet confidences In , Section 68 was invoked 23 times, and Section 69 was invoked on 313 occasions. Exclusions Cited 113 Paragraph 68(a) Paragraph 69(1)(a) Paragraph 69(1)(c) Paragraph 69(1)(d) Paragraph 69(1)(e) Paragraph 69(1)(f) Paragraph 69(1)(g) Paragraph 68(b) Paragraph 69(1)(b) In compliance with the reporting requirements for the statistical report to Parliament on the Access to Information Act, additional information is provided on exclusions. The following exclusions were not cited during the reporting period: Subsection 68.1 journalistic, creative or programming records of the Canadian Broadcasting Corporation Subsection 68.2(a) administrative records of Atomic Energy of Canada Limited Subsection 68.2(b) - operational records of Atomic Energy of Canada Limited Subsection 69.1(1) disclosure prohibited by a certificate under the Canada Evidence Act g) Completion Time Section 9 of the Act provides for the extension of the statutory time limits if consultations are necessary, or the request is for a large volume of records and processing the request within the original time limit would unreasonably interfere with the operations of the Department. 11

13 As shown in the chart below, out of 673 requests, the PCO completed 386 in 30 days or under. Expressed as a percentage of total requests, 57% were completed in 30 days or less, similar to the 59% of the previous year. However, the percentage of total requests requiring 121 days or more to complete dropped from 37% in to 18% (123) this year, a significant reduction in turnaround times and an improvement in the timeliness of response to clients Completion Time days or under 31 to 60 days 61 to 120 days 121 days or over h) Extensions of Time Limits During the reporting period, 13% of total requests (86) were extended for 30 days or less, up from 6% of total requests in However, the percentage of total requests extended for more than 30 days dropped year-over-year, from 49% to 32%. This represents a substantial reduction in processing time and an improvement in timeliness of response to the public. The breakdown of types of extensions taken in is as follows: 184 or 61% for consultations with other government institutions 78 or 26% for large-scale searches 41 or 13% for third party consultations i) Translations The Act states at section 12(2) that where access to a record or a part thereof is to be given under this Act and the person requests that access be given in a particular official language, a copy of the record or part thereof shall be given to the person in that language, (a) if the record already exists in that language, or (b) if the head of the government institution considers its translation in the public interest. There were no translations requested during the reporting period. 12

14 j) Method of Access The PCO provides records in hard copy only. Applicants have the option of receiving the response by mail or by picking it up in person. Nearly all replies are sent to the applicant by mail. k) Fees The fees collected during the reporting period totalled $5, The PCO collected $3, in application fees. In , the PCO waived fees totalling $1, nearly 84% of instances were for photocopying fees less than $25. l) Costs Total salary costs associated with administration of the Access to Information Act are estimated at $1,711, for , an increase from $1,606, in Administrative costs amounted to $227,024.80, a decrease from $661, in These costs do not include the resources expended by program areas of the Department to meet the requirements of the Act. It remains a challenge to attract and retain ATIP personnel, given the shortage of qualified analysts across the federal government. The associated person-year resource utilization for the reporting period was full-time equivalents (FTEs) out of 26 approved FTEs. As shown in the chart below, this is an increase in resources over the FTEs of the previous year and the highest FTE resource level in recent years, reflecting the Department s commitment to recruitment and retention of ATIP expertise Person-Year Utilization (FTEs)

15 Consultations a) External Consultations The interdepartmental nature of information in many records under the control of the PCO continues to necessitate external consultations. This requirement is the principal reason why some requests take an extended length of time to process, although it was possible to respond to 57% of access requests within 30 days. In addition, it was frequently necessary to consult with third parties, such as businesses and organizations. The PCO sent out 141 consultations to other government institutions. b) Consultations Received from Other Government Institutions The number of consultation requests received from other government institutions increased significantly since the last reporting period, from 353 in to 490 in As shown in the chart below, this is the second-highest volume of consultations received by the Department in the last ten years. Consultation volumes are a factor in workload, as their processing requires resources at a level similar to that of access requests. Access Consultations by Year The following departments and institutions frequently sought the views of the PCO during this reporting period: Department National Defence Department of Foreign Affairs and International Trade Canadian Security Intelligence Service Department of Finance Royal Canadian Mounted Police Environment Canada Public Safety Canada 14

16 c) Consultations with PCO Cabinet Confidences Counsel In accordance with Treasury Board guidelines, the PCO consults with PCO Cabinet Confidences Counsel (CCC) for the review and certification of Cabinet confidences contained in government records. The PCO Access to Information and Privacy Division (PCO-ATIP) sent 51 consultations to PCO-CCC in the reporting period versus 136 in Education and Training Activities PCO promotes access to information imperatives in face-to-face meetings, presentations, special events, learning products, on the Intranet and through its training program. It fosters responsible working relationships with clients, and operates under a clearly elaborated timeline. The PCO delivered ATIP training or awareness sessions to 242 employees through a total of 60 training events during the reporting year. Of these training events, 48 were training sessions presented jointly with Corporate Information Services Division, including 32 delivered in English, and 16 in French. These joint sessions form an integral part of the orientation program for employees new to the PCO. The PCO-ATIP Director met with officials of portfolio Ministers to detail the ATIP business environment and promote understanding. The PCO Executive Committee was also briefed on access statistics, performance and compliance. ATIP senior staff met with senior officials in PCO Secretariats to clarify roles and strengthen the working relationship. PCO-ATIP analysts liaised with clients on a regular basis to explain the five-stage request timeline, train on processes such as record search or review, and make expectations clear. The access business process is elucidated through a 24-page booklet, learning materials, and electronic resources maintained on the PCO Intranet. In fall 2010, PCO-ATIP developed and delivered an electronic presentation to all 900 PCO staff promoting compliance with the Act. ATIP content on the internal website was also updated to reflect streamlined approval procedures for access to information requests. Information-Related Policies, Guidelines, and Procedures a) Technological Change In the second quarter of 2010, following testing and validation, the Department brought into service a redesigned version of its case management software. The program contains more comprehensive reporting and document management functions than the outgoing version, and will facilitate the completion of expanded Statistical Reports brought into effect by the Treasury Board in April b) Co-location Recognizing the value to the access to information process that co-location of ATI staff provides, the PCO secured additional floor space adjacent to one of two current PCO access to information worksites in Ottawa, Ontario. Consolidation of all ATI staff in this expanded workspace is planned for spring The move will increase oversight, improve communication and reduce logistical movement in the processing of records. 15

17 c) Cabinet Confidence Schedule Optimization While an automated Certification schedule function in upgraded software adopted by the Department was expected to expedite the consultation process with PCO Cabinet Confidences Counsel, technical deficiencies were found. These issues were brought to the attention of the software manufacturer late in the reporting year, and adjustments will be made to ensure that technical performance meets Departmental requirements. d) Turnaround Times Reduced Over the reporting year, the Department continued to monitor its ATI business model and extract efficiencies from its work process. Areas under review included consultations with other organizations, and the use of extensions permitted under the ATIA. As a result of these efforts, average completion times were reduced from an average 157 days in to 132 days in , when requests from previous years are included. With carryover requests excluded, the average completion time drops from an average of 78 days in to 38 days this past year, a significant improvement in service to the public. Other Activities a) User Finding Aids User finding aids were available in the public Reading Room located in the Access to Information and Privacy office. An index of Cabinet agenda title items served as a guide in identifying subject areas in Cabinet records which, after 20 years, are subject to the Act. The federal Info Source and the Governor in Council Appointments Guides were also available to the public. ATIP staff members assisted those who wished to consult these resources. The Reading Room is located at: Access to Information and Privacy Division 55 Metcalfe Street, Room 1340 Ottawa, Ontario b) Processing of Informal Access Requests Requests are treated informally when it has been determined that, through consultation with the applicant, processing a formal request can be discontinued in favour of providing the information informally., i.e. outside the processes defined by the Act. No requests were processed in this manner by the PCO during the reporting period. c) Proactive disclosure In compliance with mandatory proactive disclosure requirements for government organizations, the website ( continued to make available information 16

18 concerning PCO travel and hospitality expenses, reclassification of positions, contracts over $10,000, and grant and contribution awards. Complaints and Investigations a) Complaints Received In , the PCO received 66 complaints pursuant to the Act, with the majority of complaints related to exemptions taken. As it continued to extract efficiencies in its work processes, the Department made progress in the reduction of complaints. Year-over-year, complaints against the Department dropped 60% (164 to 66). Notably, while the volume of media requests rose from 192 in to 395 in , media complaints against the Department fell 74% over the same period, from 119 to 31. The breakdown of complaints received in is as follows: 31 or 47% from the media 17 or 26% from businesses, with 14 from lawyers 10 or 15% from the public 6 or 9% from Parliament (members of the House of Commons or Senate) 2 or 3% from academia Complaints Received 9% 26% 15% 3% 47% Media Public Parliament Business Academia 17

19 b) Types of Complaints In the reporting period, complaints related to extensions taken for consultations, the use of exemptions and/or exclusions, photocopying and search fees, and instances where the complainant alleged that records should exist. c) Investigations In February 2011, the Office of the Information Commissioner (OIC) commenced its investigation into interference in access to information at the, one of eight government organizations selected for systemic review. Departmental staff, including the ATIP Director and Deputy Directors, met with OIC investigators on site to analyze specific requests, provide information, and discuss the Department s business procedures in responding to requests. The investigation continues into the fiscal year. Court Cases In May 2008, the Federal Court heard arguments in the matter of Canada (Information Commissioner) v. Canada (Prime Minister, Ministers of National Defence and Transport and the Commissioner of the RCMP). The two principal issues were whether certain records in the Ministers Offices are under the control of the government institution, and whether the Prime Minister is an officer or an employee of the. The decision of the Federal Court was rendered on June 19, The Court found that while a minister is the head of that Department, it does not make the minister, or his or her office, a component part of the Department. The Court concluded that Parliament did not intend that the PMO or ministerial offices be implicitly included as a component part of the government institutions listed in Schedule I of the Act. In regard to what constitutes a record "under the control of a government institution", the Court found that if a document was prepared by someone in a Minister's office, was to be used for the sole purposes of the Minister's office, and if no government or Departmental official has, or should have, a reasonable expectation of obtaining a copy of it, then that document is not under the control of the government institution for the purposes of the Act. On June 28, 2009, the Federal Court of Appeal unanimously dismissed an appeal of that decision by the Information Commissioner and further ruled that the Prime Minister is neither an officer nor an employee of the in relation to the Act. The Information Commissioner was granted leave to appeal by the Supreme Court of Canada. The Court heard arguments in October On May 13, 2011, the Supreme Court upheld the decision of the Federal Court of Appeal. 18